District Court New South Wales Medium Neutral Citation: R v Prospero [2022] NSWDC 26 Hearing dates: 18 February 2022 Date of orders: 21 February 2022 Decision date: 21 February 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 114 – 118 Catchwords: SENTENCING - federal offence of attempting to possess commercial quantity of border controlled drug - plea of guilty - consideration of involvement of offender in enterprise - consideration of hardship to disabled son arising from sentence of imprisonment – limits to utility of the opinons of mental health professionals in sentencing proceedings Legislation Cited: Crimes Act 1914 (Cth) ss 16A, 19F Crimes Sentencing Procedure Act 1999 (NSW) s 66 Criminal Code 1995 (Cth) s 307.5 Cases Cited: Adams v The Queen (2008) 234 CLR 143 El Jamal v R [2021] NSWCCA 105 El-Ghourani v R (2009) 195 A Crim R 208 Elshani v R [2015) 255 A Crim R 488 Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 Hili v The Queen (2010) 242 CLR 520 Leach v The Queen (2007) 230 CLR 1 Paxton v R (2011) 219 A Crim R 104 R v Boimah [2017] QCA 50 R v Edwards (1996) 90 A Crim R 510 R v Guiu (2002) 129 A Crim R 387 R v Henry (1999) 46 NSWLR 346 R v MacLeod [2013] NSWCCA 108 R v Pham (2010) 205 A Crim R 106 R v Thomas [2019] NSWDC 364 R v To (2007) 172 A Crim R 121 Sowaid v R [2011] NSWCCA Stipkovitch v R [2018] WASCA 63 Stumbles v R [2006] NSWCCA 418 The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham (2015) 256 CLR 550 Van Eeden v R [2012] NSWCCA 18 Weininger v The Queen (2003) 212 CLR 629 Wong v The Queen (2001) 207 CLR 584 Xiao v R (2018) 96 NSWLR 1 Texts Cited: S Odgers, Sentence, 5th ed, 2020, Longueville Media Category: Sentence Parties: Ms L D Prospero (Offender) Commonwealth Director of Public Prosecutions Representation: Counsel: Mr S Stanton for the Offender Solicitors: Ms M Lejins for the CDPP File Number(s): 2020/00100196 Publication restriction: Nil Sentencing remarks 1. Lisa Deng Prospero is to be sentenced for the offence that between 5 March 2020 and 1 April 2020 she attempted to possess a commercial quantity of an unlawfully imported substance, being a border controlled drug (namely methamphetamine, "ice") contrary to s 307.5(1) of the Criminal Code 1995 (Cth). 2. The maximum penalty for this offence is life imprisonment and/or a pecuniary penalty of 7,500 penalty units. 3. Since this is a Commonwealth offence, I am bound to apply the provisions in Part 1B of the Crimes Act 1914 (Cth). However, I propose to address those matters that the parties explicitly identified under Part 1B of the Crimes Act; whilst ignoring those matters within s 16A(2) to which neither the Crown nor the offender made any reference and hence, implicitly agreed had no application. Approach to fact finding in sentencing 1. Given the sparse nature of the facts, it is pertinent to remind myself of the approach to sentencing in the case of disputed or incomplete facts. It is trite that a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 ("Olbrich") at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 ("Filippou") at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour: Filippou [64], [66]; Olbrich at [27]–[28]. 2. Generally, sometimes disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed: Weininger v The Queen (2003) 212 CLR 629 ("Weininger") at [19]. It is sometimes not possible for the sentencing judge to ascertain everything that is relevant. Where that occurs the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou at [70]. The court is not bound to adopt the view of the facts most favourable to the offender: Filippou at [5], [70], [72]; Weininger at [20]. 3. Those general statements may be affected, however, by s 16A(2)(a) of the Act, by which I can only sentence the offender on the basis of matters "known to the court". As was explained in Olbrich at [26]-[28] that can mean, for example, that an offender contends for the existence of a fact which she cannot prove on the balance of probabilities and the Crown may fail to prove the non-existence of the fact beyond reasonable doubt. In such circumstances, a sentencing judge should sentence on the basis the putative fact is unknown. Olbrich presented a problem raised in this case, where there is a dearth of evidence which definitively identifies the actual role of the offender. 4. More generally, I also remind myself, the absence of persuasion of a fact in mitigation does not equate to persuasion of the opposite fact in aggravation. Nature and circumstances of the offending (s 16A(2)(a) 1. The offender and the Crown agreed to certain basic facts, which were not very extensive or illuminating as to the true extent of the criminality. 2. They were as follows. On 13 March 2020, a consignment arrived in Australia from Mexico. It was addressed to Paraise Peterika at an address in Killarney Vale. The Australian Federal Police ('AFP') intercepted the consignment and transferred it to NSW Police. 3. NSW Police examined clear plastic bags (wrapped in silver duct tape) and found that they contained a crystal substance, weighing 491.5g and 493.6g each, yielding a total gross weight of 985.1g. Purity testing indicated that the substance was 80.5% (793g) pure methamphetamine. 4. Having removed the drugs, the NSW Police resealed the consignment and delivered it to an Australian Post office in Tuggerah. 5. On 1 April 2020, Police conducted surveillance of the post office. At 6:00am that morning, the offender drove a black Mercedes motor vehicle into the parking lot attached to the post office and parked. She entered into the post office, picked up the consignment and placed it in the rear boot of her car. 6. As she attempted to leave the carpark, she was stopped by Police, arrested and cautioned. At about that time, she said that she was asked to pick up the package for 'Sasha'. 7. She was taken to Wyong Police Station and agreed to participate in an Electronic Recorded Interview of Suspected Person ('ERISP'). She indicated to Police the following: she expected to receive $1,000 to pick up an 'envelope'; she was unaware that there was also a parcel or package to collect; she believed that she was picking up white powder, which was called "ice" and which she knew was a drug; and she admitted to using ice. 8. On 8 May 2020, NSW Police executed a search warrant at the offender's residence in Campsie. A mobile phone was seized. Data analysis of the phone indicated activity from 5 to 11 March 2020, shortly before the offender collected the consignment, including: images sent to her phone from a user 'Mr Jianping Wang' of the UPS consignment envelope; the image (received on 10 March 2020) of the NSW driver licence of Paraisa Peterika; images received (on 11 March 2020) of tracking information of the consignment; and images of a "You have a Parcel" from Australia Post referable to the consignment indicating the business hours for collection. Evidence from the offender Account supplied to the Court 1. The offender swore an affidavit in the sentencing proceeding. Amongst other things, she deposed that information imparted to her psychologist, Dr Cantali, whose opinions are addressed later in these remarks, was true and correct. The offender was not cross-examined and accordingly her evidence was unchallenged. 2. The offender referred to the circumstances of her offending that she had disclosed to the NSW Police. She maintained that she expected simply to pick up an envelope, for which she expected to receive $1,000 and drugs. She deposed, in effect, that she was surprised to pick up a parcel. 3. She denied any other role in the importation of the drugs other than acting as courier. She deposed that she was there because she needed the money and the drugs because of her addiction and situation of unemployment. Account supplied to Dr Cantali 1. The offender told her psychologist, Dr Cantali, that on 1 April 2020, the day she was apprehended, she was suffering withdrawal symptoms of ice and had not slept for the two previous 2 days. At 4:00am that morning, she received (on her mobile phone) an SMS text from "Sasha" instructing her to collect a parcel. This message included an image of the 'You have received a parcel' Australia Post slip and a driver's license of the person the post was addressed to. The offender did not raise questions and she proceeded to drive from her place in Campsie to the post office in Tuggerah. The drive took between one and two hours. 2. The offender told Dr Cantali that when she arrived at the post office at 6:00am she was confused to find that she was being presented with a box and questioned the postal worker whether it was the correct package. Apparently, the postal worker assured her that it was the correct package. She accepted that assurance and left the post office with the consignment. 3. Some of this detail of what she told Dr Cantali did not feature in her own affidavit; although in her affidavit, she did depose that the facts she disclosed to Dr Cantali were true. Relevant considerations 1. I have noted the offender's account(s) of what occurred earlier. 2. In El-Ghourani v R (2009) 195 A Crim R 208, Spigelman CJ noted that there is no clear divide between the considerations relevant to an importation case and a possession case. The circumstances relating to the process of importation may also be relevant to a charge of possession: at [30]. However, the sentencing judge must keep firmly in mind that the offender is not charged with importing the drugs and acknowledge that the evidence could not be used to impose a greater penalty on the offender: R v Guiu (2002) 129 A Crim R 387 at [2]–[3]. I am conscious of that distinction whilst addressing the following principles relating to the role and involvement of the offender. 3. In the context of a drug importation case, it was suggested that the sentencing court will look into the role played by the offender and the activities performed: R v To (2007) 172 A Crim R 121 at 141. That can generally apply to a possession case. However, the significance of the offender's role should not be overstated. The thrust of much of the offender's Counsel's submissions was that the Crown could not prove her true place within, or what benefits she received from the 'cartel'. In El Jamal v R [2021] NSWCCA 105 ("El Jamal"), the Court of Criminal Appeal recently noted that, for the instant offence, identification of the precise nature of an offender's involvement in the enterprise is not an essential aspect of the sentencing process: [24] (Payne JA), [64] (Garling J), [67] (Wright J). 4. As was said in Paxton v R (2011) 219 A Crim R 104 (in another importation case), whilst the proper focus will be on the offender's involvement in the steps, it can be problematic to attempt to categorise the offender's role "as in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court." (see also Olbrich at [19]). 5. Be that as it may, to the extent that some categorisation is relevant or even useful, I am not satisfied beyond reasonable doubt that the offender was shown to be more than a courier. It has not been demonstrated that she was an organiser or principal of an enterprise. It has not been shown that she was involved in the process of decision-making, or stood to obtain vast profits or remuneration from her involvement in it. 6. In El-Ghourani v The Queen (2009) 195 A Crim R 208, the Court of Criminal Appeal emphasised the variety of circumstances, affecting an offender's culpability in a possession case, including how the offender came to be in possession and what the offender intended to do with the drug. 7. The offender was promised some drugs for agreeing to engage in the offending. I accept her counsel's submission that it has not been demonstrated that she sustained a lavish lifestyle on the back of her offending. 8. Be that as it may, it does not assist the offender to say, as her Counsel submitted, that she is the only person within the enterprise charged with respect to the offence. It is notorious that criminal enterprises could not subsist without assistants at different levels of the enterprise. As the offender later deposed in her affidavit, it was people like her who play "small parts" in helping others to import drugs into the country. Weight and purity of drug 1. For serious drug offences, it is generally considered that the relevant factors in fixing a sentence include the quantity of the drug involved, the offender's knowledge and role in the importation and the offender's anticipated reward from participating. Weight is not the chief factor to be considered in fixing a sentence: Wong v The Queen (2001) 207 CLR 584 at [67]. The High Court in that case also observed, in explanation of the relevance of comparable cases (at [64]) that: "In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed." 1. I agree with the Crown's submission that it is not immaterial to consider the quantity of the drug. In this case the volume (793g) exceeded the 750g threshold for commercial quantity of ice. The purity of the drug is also relevant. Here it was high. 2. Further, I agree that it is inappropriate for a sentencing judge to punish in accordance with an assessment of the harms produced by the particular narcotic: Adams v The Queen (2008) 234 CLR 143. 3. The Crown submitted that the seriousness of the offending is greater when committed for financial reward. Here the offender's motive was mixed: it was financial, in part, albeit that the gain was disproportionately modest to the costs if apprehended, but also to feed her addiction. 4. The one matter emphasised by the offender's Counsel in his written submissions and oral argument was the evidence of the offender's belief that she was only picking up an envelope and not a parcel. Counsel argued that the Agreed Facts indicated that the Police accepted that evidence. I disagree. It is more accurate to say that the Agreed Facts recorded the Police's acknowledgement of the offender's assertion of her belief, rather than its acceptance of the truth underlying it. Further, Agreed Fact 13(d) signified that she had an image from an Australian Post slip titled "You have a Parcel' on her mobile phone. Be that as it may, in circumstances where the offender repeated the assertion in her affidavit, and she was not challenged on it, I accept her evidence, on the probabilities, that she expected to collect an envelope. 5. Contrary to the offender's Counsel's submission however, the mental distinction which the offender drew between picking up an envelope and picking up a parcel does not substantially enhance her position. To begin with, if the distinction was truly material to her, and had she read the text message on the Australia Post slip carefully, it is likely that should would have picked up that there was an obvious discrepancy between the instructions she received on her phone about picking up an envelope and picking up what Australia Post had identified as a parcel. Had she read both messages, inquiry could have been made of those instructing her if there was any relevant difference. According to her own account, she was astute, at the time of collection, to appreciate that the consignment of drugs (which she knew was ice) was packaged by parcel, rather than envelope and, on her evidence, aware that there was a discrepancy between her original belief and the situation she was presented with. In circumstances where she well knew that she was embarking upon criminal activity, as the Crown submitted, she could have, but did not, desist from continuing on with the criminal activity, once apprised of the discrepancy. The offender's reference to her mental condition at the time of the offending 1. Relevant to consideration of the offender's culpability is her drug addiction. She informed the community corrections officer that she developed an addiction to ice in 2017. She said that her drug use escalated from 2018. 2. The offender told the community corrections officer that she was feeling depressed at the time of her offending, which, she thought, exacerbated her drug use. 3. The offender relied upon psychological opinion regarding her mental health. Dr Cantali is a registered psychologist. She has studied psychology for nearly 25 years and has numerous professional affiliations. There was no suggestion that she was not qualified to express opinions about the offender's (or her son's mental state). She prepared a report dated 5 November 2021. She has also spent considerable periods of time interviewing and diagnosing the offender. 4. With some apparent circumspection, Dr Cantali diagnosed the offender as meeting the DSM V criteria of substance use disorder and persistent depressive disorder. Dr Cantali believed that her behaviours prior to the offending demonstrated 'maladaptive coping styles', in relation to her relationships, depression and drug use and she made poor choices to access her 'fix'. 5. Dr Cantali emphasised the significance to the offender of the loss of her parents (her mother in 2013 and father in 2017) and her prolonged bereavement. Her capacity to function was further impaired when she entered into two dysfunctional relationships. Dr Cantali cited research to show that prolonged grief made persons more susceptible to anxiety, depression and substance use disorders. The consumption of ice, being highly addictive, had a great impact upon the offender who, without professional help, found it difficult to stop her drug use. Dr Cantali believed that her behaviour on the day of her offending was apprehended was consistent with withdrawal symptoms. 6. To the extent that this may be used to ground a submission that she did not have her faculties operating at the time of the offending, I do not find this last point convincing: whatever 'insomnia, confusion and agitation' that the offender was subject to on the morning of her apprehension, as characterised by Dr Cantali, she knew what she was doing. The main part of her case was that she unexpectedly collected a parcel when she was led to believe that she was there to collect a small envelope in consideration for which she would receive a $1,000 payment and drugs. That is, she underestimated the volume of the drug she was to collect. But to estimate requires calculation; not indifference or inadvertence. She was able to drive someone else's Mercedes motor vehicle a not inconsiderable distance in the early hours of the morning (with her dependent disabled son in her company) without incident. I referred a short time ago about the choice she had when confronted with a parcel and not an envelope. She was also aware that she was being given a false identity. (She had in the past been convicted in relation to an identity offence). I agree with the Crown that the circumstances betokened a level of sophistication of the enterprise and a conscious effort on her part to evade detection. She had her wits sufficiently about her in trying to implement the instructions supplied to her. 7. I take into account the offender's background, which I go into in greater depth later in these remarks, but it does not materially lessen her culpability to any pronounced degree. To anticipate what I say later in her subjective case about her relations with her parents and partners, it is a sad, but certain, fact of the human condition that each of us lose their parents (and other loved ones) and most of us endure bereavement and grief as a result. At such times perhaps, when we are emotionally vulnerable, we turn to others, entering new relationships to provide emotional support and sustenance. Sadly, many still choose partners who turn out to be unsuitable and generate unhappiness and worse. It so happens that, accepting the truth of her account (the Court only hearing her side of the story and not the partners'), the offender chose bad partners who had a bad influence upon her and she became exposed to a drug culture. Unfortunately, in society, this type of experience is not exceptional. 8. I am conscious that, in sentencing for a federal offence, there is no comparable explicit prohibition upon taking into account 'self-induced intoxication' as there is for a state offence, and conceivably intoxication may be taken into account in a number of ways, but I am unable to accept that the offender's capacity to exercise reasoned judgment, or self-control, at the time was so impaired as to reduce the seriousness of her offending. To the contrary, the build-up of messages on the days leading up to the offending, with its indications of planning and premeditation, is antithetical to the idea of impulsivity in a person who just happened to have their mental faculties impaired. 9. At any rate, drug addiction is sometimes a double-edged sword in sentencing. It can support leniency, through reducing the seriousness of the offending, moderating general and specific deterrence and enhancing prospects of rehabilitation. But it may support greater severity if the protection of the community is at stake. True it was that the offender became addicted to a particularly nasty recreational drug during a period in her life where she was emotionally vulnerable. But she did so at a time when she was of mature age. She had no dysfunctional upbringing. There was, in her case, at least partly a moral choice that she made when she originally decided to take the drug (R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at [197]). In retrospect, it does not appear that this offender was an obvious candidate to become an ice addict. Moreover, partly because of her maturity, it seems that the offender had recognised an addiction before the subject offending but refrained from seeking assistance to help her withstand the addictive feature of ice. As Spigelman CJ noted in Henry, the decision to persist with an addiction, rather than to seek assistance, is also a matter of choice. 10. The offender's ice addiction, to a limited degree, provides part of the context for why she offended, but it does not diminish her culpability for it. Overall assessment of gravity of offending 1. I have referred to and weighed the various matters concerning the offender's role and circumstances of her involvement, the weight and purity of the drug and matters suggested as bearing upon her culpability. 2. Even though this is not a state offence affected by a standard statutory non-parole period, so that it is strictly unnecessary to categorise where the offending fits on a scale, I do not accept the offender's submission that the offending occurred at the 'lowest' end. I find that it fell between the low end to the mid-range, albeit closer to the low end. General deterrence (s 16A(2)(ja)) 1. I adopt the following statement made by the Court of Criminal Appeal in R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72(g)]: "..the difficulty of detection importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case". 1. Given the findings I have made on culpability, neither the offender's drug addiction nor the mental health issues identified by Dr Cantali materially moderate the weight to be accorded to this consideration. 2. Counsel for the offender acknowledged the significant role for general deterrence in the outcome. 3. I am also required to sentence with reference to the degree by which the offender's conduct offends against the legislative object of suppressing the illicit trade in prohibited drugs (R v To (2007) 172 A Crim R 121 at 126). Adequacy of punishment (s 16A(2)(k)) & other principles 1. There is a need to make the offender accountable. 2. Although it is a distinct consideration, another related consideration is that for an offence of this kind, given its nature and the social consequences, it is also very important to impose a sentence that will protect the community and also serve the purposes of denunciation. THE OFFENDER'S SUBJECTIVE CASE Character, antecedents, age and other conditions (s 16A(2(m)) 1. The offender was 56 years of age at the time of the offending. I referred earlier to her addiction to ice when considering its impact on the seriousness of her offending. 2. Much of the offender's background was considered by Dr Cantali. The offender deposed that what she told Dr Cantali was true. 3. Dr Cantali reported that the offender came from a stable family background. She had two siblings; one of whom has passed away and the other from whom she is estranged. The family was very tight knit. She had been sent to Australia, by herself, at the age of 24; apparently because of concern about her Asthma; which had required frequent hospitalisation. She felt alone. Her parents are now both deceased. 4. She finished high school but throughout most of her life, she has identified as being a mother and housewife. 5. When she was only 3 years of age, she witnessed the dead body of her aunt who, apparently, had suicided. The offender told Dr Cantali that she still experiences nightmares about the incident; although Dr Cantali did not make all that much of this matter. 6. She has a close relationship with both of her children. She told Dr Cantali that she values family and cultural traditions. Her daughter, now 27 years of age, is fully independent and, as noted, even financially supports the offender. 7. Aside from her period of incarceration (from 1995 to 2000) she has had periods in and outside Australia, but she and her children have both resided here continuously since 2010. 8. The offender told Dr Cantali about her history of dysfunctional relationships. Her two male partners (in separate periods) were into drugs and it appears that in both relationships, she was emotionally abused and exploited. She claimed that both men had cheated her of her money and property. Dr Cantali discerned that she had an unmet need for emotional support. The first relationship began in 2013 and ended in 2018. The second relationship ended in 2019. She told Dr Cantali that she no longer has contact with either partner. 9. The offender told Dr Cantali that it was during these relationships that she became addicted to drugs as a coping mechanism. Her first partner reputedly introduced her to ice in 2013 at a time when she had lost her mother. From then until 2019, she told Dr Cantali that she consumed up to 3.5g of ice each week. 10. Some of the background also comes from the sentencing assessment report, which was prepared on 17 June 2021. That report confirmed matters raised in Dr Cantali's report. 11. The offender is currently unemployed and in receipt of a single-parent income support benefit. She receives some financial support from her 27 year old daughter, who, though she does not live with the offender, is supportive of her. The offender lives with her teenage son. 12. She has had a not insignificant criminal history, but it is fair to acknowledge that much of it relates to the distant past. Minor offences stretch back to 1992. Of more significance are earlier drug offences, including multiple offences for knowingly taking part in the supply of commercial quantities of prohibited drugs (1996 and 1998), a common assault (2005) and the improper use of a passport (1996). As was noted in the sentencing assessment report, there has been a significant gap, in time, between the earlier drug offences and the subject offence. Nevertheless, despite their age, the impression of these offences is an offender with prior experience in enterprises dealing in drugs and engagement in acts involving dishonesty. Of further significance is that these earlier serious offences were committed when she was an adult and, on her account, well before she became a drug addict. It is not so much a matter, as the offender's counsel warned, of treating this past record as aggravating the offending. It is more a case of depriving the offender of the capacity to argue for matters in mitigation. Thus, it cannot be said that the subject offending was an isolated event. Nor can it be said that she comes to this Court as a person of good character. Guilty plea (s 16A(2)(g)) 1. The Crown concedes that the plea was entered at the first reasonable opportunity. Having regard to that circumstance, and the utilitarian value of her plea generally, even in the face of a strong Crown case after the limited admissions she made (per Xiao v R (2018) 96 NSWLR 1), I allow a 25% discount. Degree of contrition (s 16A(2)(f)) 1. The offender affirmed an affidavit on 19 November 2021. She expressed how deeply ashamed she was and how sorry she was. She deposed to realising that what she did was wrong; and recognised that she assisted people to import drugs into Australia. 2. In the sentencing assessment report, the community corrections officer recorded the offender's statement of regret and desire to make amends; and had demonstrated insight into her offending. 3. I am not persuaded that the guilty plea was itself demonstrable of remorse in a way that might substantially add weight to this particular sentencing factor. I do, however, accept that she is contrite and genuinely remorseful. Rehabilitation prospects (s 16A(2)(n)) 1. The community corrections officer opined that the offender presented with 'pro-social' attitudes and expressed a willingness to be supported with intervention to address her offending behaviour. The corrections officer was clearly impressed with the offender: she was described as being co-operative and forthcoming with information. 2. The offender informed the community corrections officer that she had ceased drug use since August 2020 and expressed a desire to live drug-free. The offender told her that she had ceased contact with past negative associates and, to that end, had relocated her address. 3. The corrections officer subsequently inquired into her psychological service which confirmed that she had regularly attended sessions with that service since September 2020. 4. Using the LSI-R index, the offender was assessed at being at the T1/Med-Low risk of reoffending. 5. I place weight upon the corrections officer's opinions. To a significant degree, her prospects for rehabilitation, and the likelihood of her re-offending will depend upon her capacity to stay away from drugs and, it might be added, the capacity for her to otherwise lead a purposeful life. 6. The offender told Dr Cantali that after the breakup of the relationship with her first partner (in 2018) she tried to cease her consumption of ice, but experienced intense withdrawal symptoms. But she was depressed and anxious, grief-stricken and financially destressed. She understood a need for professional support but was concerned that by receiving it, it might take her away from her children. 7. Plainly, the offender now asks the Court to accept that she has learnt lessons and has the strength to continue to abstain from drugs. Since her arrest, she had engaged psychological support and believes she has developed a rapport with her therapist. She had not consumed ice since May 2021. In her first report Dr Cantali was optimistic that the offender showed a 'strong probability for change', given the offender's expressed motivation and commitment to therapy since 2020. 8. In Dr Cantali's supplementary report (13 February 2022), Dr Cantali commented upon the offender's positive therapy sessions from November 2021 to the start of this year. The focus of the report, however, was the offender's responsiveness to an episode of self-harm by her son in September 2021 and an enhanced appreciation in her of her maternal responsibilities and her capacity to assist her son. 9. Dr Cantali was cross-examined in the sentencing hearing. She was confident that the offender did not currently have a drug problem. If the offender had returned to drugs, she believed that she would have noticed this. She believed the offender when she told her that she was abstinent. It was suggested, with reference to an earlier occasion when the offender was reticent to disclose drug-taking because of a fear of the consequence that she may lose her children, that it was possible that the offender may not be entirely forthcoming about her taking drugs in the future. Dr Cantali appeared to reject the likelihood of that occurring. 10. Whilst I respect and give weight to Dr Cantali's opinions, I must confess to feeling a strong sense of advocacy and an excess in enthusiasm in her that is not usually associated with the supply of detached professional opinion, for the benefit of the offender; hence the somewhat sweeping statement that "Her commitment to therapy and rapport in therapy has changed her perspective on life and on parenting". I will return to this shortly, with some of the matters raised by Dr Cantali about the offender's son. 11. Whilst I accept that the offender has demonstrated insight, is conscious of her responsibility, especially, as a primary carer for her son, and about the risks to her of drug-taking, as well as her conscious efforts to remove herself from past negative associations, I am not quite so sanguine as Dr Cantali, or the community corrections officer, as to the risks of her relapsing into drug-taking. Relevant in this regard is her criminal past (even if it is fairly distant) and her residual emotional vulnerability should she again get caught up in bad company. I find that her prospects of rehabilitation are reasonable. 12. Hand in hand with the consideration of rehabilitation prospects is the general consideration of the protection of the community which I touched on a little earlier in these remarks. The nature of the offending and the offender's background is such that this matter has significance in the sentencing exercise. To the extent that the offender has reasonable prospects of rehabilitation, this will reduce a commensurate degree the weight of this consideration. Specific deterrence (s 16A(2)(j)) 1. Having regard to her earlier offending, albeit a long time ago, and even before the onset of her ice addiction, and the circumstances of her current offending, there is a patent need for the sentence to be of sufficient severity to deter the offender. I understood the offender's Counsel not to dispute that weight should be accorded to this consideration, albeit that it was substantially moderated if only because of the consideration of hardship to her son; which I will come to shortly. For reasons to be elaborated, I consider that specific deterrence is moderated to a limited degree because of the concerns that the offender has for her son, however it remains a factor of substantial force. Hardship to third parties (s 16A(2)(p)) The offender's evidence 1. In her affidavit, the offender described, at length, severe mental health issues affecting her son, who resides with her. She deposed to issues associated with his mental health as manifesting as early as kindergarten. He is now 16 years of age. She says that her son only has herself to look after him. Although her daughter was supportive of her, she is unable to look after him. 2. On this last aspect, the offender's daughter affirmed an affidavit to similar effect. She explained that she works full-time and confirmed her past financial support of her mother; especially to enable her mother to continue to live in her home. She also confirmed that she has no contact with her father and both of her maternal grandparents had deceased. 3. The offender is very apprehensive about her son's recent history of suicidal ideation and attempted suicide. She deposed to feeling frightened of what might happen to him if she is not with him and this makes her scared. Professional opinion 1. Expert psychological and psychiatric evidence was adduced in relation to her son's mental health conditions. Dr Cantali prepared multiple reports into her son's condition (18 November 2021 and 13 February 2022). A child and adolescent psychiatrist, Dr Tam, also prepared a report (9 February 2022). 2. Dr Tam referred to the son's attendance for examination on 17 January 2022. The shortness of his association somewhat reduces the weight of his opinion. So too, it appears that Dr Tam has relied very much upon the history he had received (apparently) from Dr Cantali, who, herself only saw the offender's son for the first time in July 2021. Nevertheless, there was no challenge to his diagnoses that the offender's son suffers from a wretched combination of severe social anxiety, autism-spectrum disorder (Level 1 severity), periods of low mood or depression, emotional dysregulation and gaming disorder (which I understand is a compulsion to video games). 3. Dr Cantali prepared reports on 18 November 2021 and 13 February 2022. It was to similar effect to Dr Tam. In her first report, she indicated diagnoses of Autism Spectrum Disorder and Major Depressive Disorder. She identified the offender as being an 'integral' part of her son's treatment plan. She commented upon the positive impact upon the son of the offender managing her own issues. She expressed grave concerns about the regression of his emotional state if his mother is unable to be in full time care and in attendance to his needs. In her supplementary report, she referred to a risk assessment finding the son at risk of self-harm. He needed consistency in his world and the offender had an "essential" role in his continued engagement in therapy and implementation of a positive environment. 4. Dr Cantali was cross-examined on her opinions about the effects of the offender's situation on her son. She said that the son, after his suicide attempt last year, remained on 'suicide watch'. She said that the safety plan in place for him involved different participants: his mother, the therapists administering treatment and the son's school. She said she understood that an application for NDIS was in train, which might cover speech therapy and assist him with his capacity for emotional regulation. 5. She clarified that when she had referred to the apparently inconsistent opinions about the offender's strong community networks and absence of family and friends regarding the prospective care of the offender's son, she meant that her practice was able to provide support for the offender's son. 6. With no pronounced subtlety, both professionals clearly indicate that it is necessary (in Dr Tam's words) to prevent functional decline in the offender's son that "requires" the mother to remain in the home and domestic situation to assist him. 7. It may be said that evidence of this kind exceeds the proper remit of mental health professionals. Sentencing courts may be influenced by the professional assistance that they receive from experts on matters concerning (essentially) the subjective cases of offenders and close family members. Mental health professionals should understand that sentencing judges (at least distinct from judges determining issues of a person's mental fitness) do not outsource to them decisions as to what sentencing options are appropriate since, unlike mental health professionals, sentencing judges are enjoined by statute to take into account a raft of considerations that go way beyond the personal circumstances of offenders (and third parties). It is axiomatic that sentencing principles pull in different directions; which explains the difficult nature of the task. Sentencing judges do not need, and are not assisted by mental health professionals engaging, by design or in effect, in a form of emotional blackmail. 8. There is force, in any event, with the submission of the Crown that some care needs to be taken when evaluating Dr Cantali's views about hardship to the son. Most of Dr Cantali's association with the offender's family has revolved around the treatment of the offender; not her son. There is a concern that when expressing views about his needs, Dr Cantali may have been subconsciously affected by her concern about the offender's needs. Most of the therapeutic treatment being administered to the son was done so by others, albeit under her 'supervision'. It was not quite clear how 'hands on' Dr Cantali has been with the treatment of the offender's son. 9. I raised with Counsel for the offender during argument that there was nothing to indicate what the offender had done to make 'provision' for the care of her son on the contingency that she may be subjected to a full-time custodial penalty. Counsel responded that there was no evidence to indicate that she had done anything, but she could be excused for that; it was understandable for her to find it difficult to countenance her being relieved of her maternal responsibility for her highly dependent son. Whilst I accept that it was understandable, single mothers in the sole care of disabled children, who commit serious indicatable offences and who are on bail, but who face the prospect of a sentence of imprisonment cannot assume that, if that sentence come to pass, the sentencing option that it be served with full-time custody, will be eliminated on account of the needs of the disabled children. 10. It is well-recognised as a general sentencing principle that hardship to third parties may be a matter in mitigation, but only in "exceptional" circumstances (R v Edwards (1996) 90 A Crim R 510 ("Edwards") at 516). Where this factor exists, it helps to reduce the need for specific deterrence and enhance rehabilitation. There is some controversy as to whether there is a requirement for 'exceptional circumstances' before hardship to third parties can be considered under s 16A(2)(p): see Elshani v R 2015) 255 A Crim R 488. As the Court of Criminal Appeal (per Adams J, Gleeson JA agreeing) determined in that case that there is such a requirement, which was also applied recently in El Jamal, I respectfully adopt that analysis here. Both the Crown and Counsel for the offender argued on the common basis that 'exceptional circumstances' needed to be made out for the consideration in s 16A(2)(p) of the Act to be enlivened. 11. It is well-recognised that it will be very common for a sentence of imprisonment to have an adverse impact on third parties, especially close family members to the offender. In Edwards, Gleeson CJ said the following: "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed ... it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment." (emphasis applied) 1. As Simpson J (as her Honour then was) explained in Sowaid v R [2011] NSWCCA at [43], it is "obvious" that in any case where a parent is sentenced, some hardship will be occasioned to the family, and that this would consequently occasion distress in the offender. 2. 'Exceptional circumstances' were found to exist in Stumbles v R [2006] NSWCCA 418 at [26], where the offender's children were autistic and very considerable strain was left on the offender's wife where the offender had been involved in the daily care of the children prior to sentence. 3. The reason for the stipulation of 'exceptional' circumstances to afford substantial weight to this ground is to ensure that a general consideration of mercy should not undermine or unduly outweigh other sentencing considerations. As one commentator has noted, based on his survey of the cases, the salience of third party hardship as a consideration may have a disproportionately greater impact on any non-parole period than it does the head sentence (S Odgers, Sentence, 5th ed, 2020, Longueville Media [4.229], p 497). I also consider that another sentencing principle, being equality of the law, is also at play in explaining the requirement. As indicated, there is a concern that offenders for a particular offence may justifiably feel aggrieved that another offender, by the bare circumstance of having a dependent who will suffer hardship by a penalty that would otherwise be appropriate for the same offence, receives disproportionate leniency as a result. 4. The offender's son's mental health conditions did not emerge after the offending had occurred. They, or at least the symptoms of them, have been long-standing. Accepting, as the offender indicated, that for most of the last decade she was in protracted periods of bereavement from the passing of her parents, fell into 'bad company' and became exposed to ice, it remains curious that for someone with her generally uneventful upbringing, who had instilled in her family and cultural traditions, was oblivious to her son's needs; at least to the extent in not obtaining, earlier than she did, diagnoses and treatment plans for him from professionals. At the risk of sounding unduly harsh, it is not wholly inaccurate to say, as the Crown submitted, that there appeared to be an absence of consideration to the son's needs before the offending. At least it can be said that she did not worry overmuch about the consequences for her capacity to care for her son if the subject offending was detected, as it was. The offending occurred in a context where, given her earlier offending, and the sentence of imprisonment imposed upon her, the offender must have known, or be taken to have known, that she ran a substantial risk that if apprehended, she would be subjected to incarceration with the result that she would be unable to look after her dependent son. As indicated earlier, the circumstances of the offending do not suggest any impulsivity. It had been 'brewing' over the course of several days, as indicated by the mobile phone activity between 5 and 11 March 2020. It is likely that she had capacity to reason in this period and that included weighing the potential costs to herself – and her son – against the benefit to be derived from her conduct. In such cases, it has been said that a sentencing court would give relatively little weight to hardship where it is an inevitable consequence of the offender being apprehended (Van Eeden v R [2012] NSWCCA 18 at [40]-[41]). 5. The Crown submitted that I would not find that the standard of "exceptional" circumstances is made out. It is not uncommon for disabled or dependent children to go into the care of the Department of Communities and Justice upon the incarceration of the sole carer. The Crown argued that the offender (who bore the onus on this matter, albeit on the probabilities) did not establish that the support framework recently utilised to assist the son would entirely collapse (noting, of course, the offender's own maternal role as part of that framework). It was not shown that the NDIS application would not proceed; that the son would be deprived of the support of his current school; or the support offered by Dr Cantali, in terms of her supervision. 6. There is force in these arguments. However, this is no ordinary case of hardship for a disabled child flowing from the incarceration of his primary carer. I accept the evidence of the mental health professionals that the offender, as the son's mother, is integrally involved in the treatment and find it likely that her incarceration is likely to impair, to some degree, the treatment of her son's disorder. Overlaid in this is the circumstance of the son attempting to suicide last year (post-offending) and the currency of his being on "suicide watch." Although earlier precedents have limited weight in this context, I consider that the case of hardship here is stronger than the facts identified in Stumbles, the decision I referred to earlier where hardship was accepted. I acknowledge, and accept the force of the Crown's submissions that he is not solely being cared for by his mother and there is no reason to suppose that should he, for example, be generally subject to the supervision of the Department of Communities and Justice, that he will become totally bereft of his current regime for treatment. 7. This having been said, the issue is the real effect of this consideration. This consideration is most efficacious for borderline cases, such as whether an immediate custodial penalty is in the balance or, as Counsel for the offender would have it, whether it means the difference between a term of imprisonment served in full time custody or under community supervision. I am not persuaded, given the gravity of the offending and my synthesis of the other sentencing principles, that this is a borderline case. I also agree with the Crown that although it may be accepted that the care and treatment of the son will be impaired, the standard is not whether he will receive ideal, or perfect treatment by reason of the removal of his mother. 8. Accordingly, the effect of the consideration is that it is more apposite to enhance the offender's prospects of rehabilitation rather than moderating, to any substantial degree, the consideration of specific deterrence. It is of most significance for the length of the non-parole period; a matter I will return to later in these remarks. Comparable cases 1. The Crown drew to my attention some other cases (from a range of different state jurisdictions) in a table appended to the written submissions. In sentencing federal offenders, it is acknowledged that attention to comparable cases will aid in achieving consistency (Hili v The Queen (2010) 242 CLR 520 at [18]; The Queen v Pham (2015) 256 CLR 550). Of the cases drawn to the Court's attention, perhaps the closest in comparison, with reference to the objective circumstances, principally, the volume of the drug and the offender's role was that of R v Boimah [2017] QCA 50. In relation to a case where the subjective features were comparable to this offender, some guidance is indicated by the decision of Stipkovitch v R [2018] WASCA 63. I have borne those cases in mind, whilst acknowledging the limits of comparable cases. In reality, in this area, no two cases are likely to be the same. 2. I have also had regard to a decision of Weinstein SC DCJ in R v Thomas [2019] NSWDC 364, one of the apparently few occasions where an offender (as an accessory) who pleaded guilty to the instant offence received a sentence of an Intensive Correction Order ('ICO'). This was partly in deference to the submission of the Counsel's offender that it was appropriate for the Court to consider a sentence of imprisonment served by ICO in this case. In my view, the conduct of the offender in this case was much more significant, and pivotal to the success of the enterprise, than the circumstances of the offender in Thomas. INSTINCTIVE SYNTHESIS 1. I am required to impose a sentence that is of such severity as is appropriate in all the circumstances of the offence. 2. The maximum penalty serves as a yardstick. I accept the offender's submission that a maximum penalty of the length in this case does not, by itself, mandate a particular sentence. 3. The offender's Counsel initially submitted (in written submissions) that the circumstances of her minimal role in the offending and the need to look after her son calls into question whether a full-time custodial sentencing option is the most appropriate form of punishment. 4. I disagree. Having regard to the following principal matters: 1. the yardstick of the penalty and the extent of the nature and gravity of the offence itself, 2. her awareness that she was to take ice into her possession, 3. the efforts in which she participated in the enterprise, including her utilisation of fake identity, use of a vehicle supplied to her and collection at an early part of the day, with the endeavour of concealing detection; 4. it was not been demonstrated that she was a 'principal' in the criminal enterprise, nor stood to gain, or did handsomely gain from it, 5. the quantity and level of purity of the drug, 6. considerations of general and specific deterrence, adequacy of punishment and denunciation, all of which are partly leavened by positive indications of the offender's rehabilitation, which are also augmented by her concern for her son. I conclude that no other sentence apart from full time imprisonment is appropriate in all of the circumstances of the case (s 17A of the Act). Counsel for the offender ultimately conceded (in oral argument) that this threshold was crossed. 1. In so concluding, I have considered the offender's counsel's submission about the propriety of an ICO. The length of the term of imprisonment I propose, which principally reflects the gravity of the offending, precludes my acceptance of that submission and obviates a further need to consider s 66 of the Crimes (Sentencing Procedure Act) 1999 (NSW). 2. For this federal offence, there is no statutory non-parole period and no standard proportion. Sentencing judges therefore have a greater discretion to fix the non-parole period than they do for state offences. Although she cannot be said to be a first time offender, the circumstances of her family, especially her son and the positive signs of rehabilitation, as identified by Dr Catali, indicate that will aid the offender and the community generally, if she has a substantial period on parole, assuming she is eligible. The sentence below tries to ensure that. I am conscious, and regret, the impact upon the offender's son, by reason of the sentence to be imposed, but his interests, and his mother's rehabilitation are substantially accommodated by the length of the non-parole period. 3. The offender has had 1 day in custody. The sentence will be backdated to take that into account. ORDERS 1. Ms Prospero, please stand. 2. You are convicted of the offence of attempting to possess a commercial quantity of unlawfully imported border controlled drug. 3. Taking into account the discount for your guilty plea, I sentence you to a term of imprisonment of 3 years and 6 months, commencing 20 February 2022 and expiring on 19 August 2025, with a non-parole period of 1 year 9 months expiring on 19 November 2023. 4. Pursuant to s 16F of the Crimes Act, your solicitor is to explain to you in language likely to be readily understood by you, the purpose and consequences of fixing the non-parole period including, in particular, an explanation: 1. that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and 2. that, if a parole order is made, the order will be subject to conditions; and 3. that the parole order may be amended or revoked; and 4. of the consequences that may follow if you fail, without reasonable excuse, to fulfil those conditions. 1. I further direct that Dr Cantali's reports of 5 November 2021 and 13 February 2022, insofar as they contain treatment plans for you, be brought to the attention of those officers within the correctional centre responsible for your supervision. ********** Amendments 15 March 2022 - File Number typo corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2022